Joseph Cheptoo v National Social Security Fund, Nairobi City County Government & Estate of Henry Cheruiyot

3. Learned counsel submitted that there is nothing called an estate of a deceased person capable of being sued without involving the legal representative. 4. Learned counsel submitted that there is no evidence that the estate of representative the deceased through has issuance acquired of a legal letters of administration by a court. Learned counsel urged the court to find the omission fatal to warrant dismissal of the suit. 5. On the other hand, learned counsel, Mr Omondi, for the Plaintiff submitted that it is the 3rd Defendant who is asserting that there are no letters of administration and therefore the burden of proof is on him. 6. Learned counsel submitted that non-joinder of the legal representative of the estate should not defeat the suit. Learned counsel for the 2 nd Defendant, Mr Oduor, at the hearing of the preliminary objection opted to leave it to the court. 7. The court was approached by the Plaintiff through a plaint dated 17.4.2026. It describes the 3rd Defendant as the estate of the late Henry Cheruiyot. In a paragraph, the Plaintiff has pleaded that the deceased and he had ELC LC NO. E145 OF 2026 2

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agreed, with the assistance of Tassia village elders and the area chief, that plot Nos. 97/0718/29 and No. 97/0718/530 be registered under their respective names. 8. He says that the 1 st Defendant later on alleged it belongs to him, for which he paid, Ksh281,000/= and acquired a certificate of ownership dated 3 rd January, 2006 and took possession and built herein for the last 23 years, operating a school known as Tassia Joy Educational Centre. 9. The Plaintiff avers that the Defendant died in an attempt to create a sewerage way; the Defendant has embarked on demolition of the Plaintiff's school over LR No. 97/0718/529, which will prejudice him. It is averred that the Plaintiff, in an attempt to regularise his ownership with the 1st Defendant on 20.10.2025, established that the suit property in 2008 was allegedly fraudulently registered in the name of an unnamed individual despite his earlier payout for it to the 1st Defendant’s account. 10. The Plaintiff avers that Tassia Joy Education Centre is a vital community asset serving over 300 students and 20 staff members and therefore any further demolition as threatened by the 1st Defendant amounts to interference ELC LC NO. E145 OF 2026 3

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with the suit property and will cause irreparable loss and damage to him. 11. The Plaintiff prays for; a) Declaration that he is the lawful and absolute owner of LR No. 97/0718/529 in Tassia Village, Embakasi. b) Declaration that the registration of the suit land in the name of a third party in 2008 is fraudulent, null and void, and should be cancelled. c) Order directing the 1st Defendant to regularise the Plaintiff's ownership by issuing him with the requisite ownership document in his name. d) Permanent injunction e) A preliminary objection consists of a point of law which has been pleaded, or which has arisen by clear implication out of the pleadings, and which if argued may dispose of a suit, as defined in Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors (1969) EA 696. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A preliminary objection therefore intertwined with contested facts and/or requiring evidence to sustain it cannot ELC LC NO. E145 OF 2026 4

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amount to a pure point of law, as held in George Oraro Vs Barak Eston Mbaja [2005] KEHC 3182 (KLR) 12. Examples of preliminary objections include jurisdiction of the court statute barred claims and on locus standi. 13. The 3rd Defendant takes the view that it is improperly sued in this matter since the estate of the deceased has not taken out letters of administration. The Plaintiff does not dispute or substantiate whether or not there exist letters in respect of the estate. 14. The question of whether or not one has capacity to be sued on behalf of the estate of a deceased is a pure point of law. 15. Lack of letters of administration makes one lack capacity to sue or be sued, as held in Tessie Margaret Muthika Muriuki Vs NBK, HCCC No. 4 of 2003.In Christine Achieng Ogesa & Another Vs British American Managers Ltd, HCC, Cause No.2511of 2011 the court held that without a grant of representation or a special limited grant colligenda bona the applicants had no legal capacity to sue the respondent. ELC LC NO. E145 OF 2026 5

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16. Section 2 of the CPR defines a legal representative as a person who in law represents the estate of a deceased person. It states that where a party sues or is sued in a representative capacity, the person on whom the estate devolves on the death of the party so suing or sued. Order 4 Rule 4 CR provides that where the Plaintiff sues in a representative capacity, the plaint shall state the capacity in which he sues and where the Defendant is sued in a representative capacity, the Plaintiff shall state the capacity in which he is sued. 17. In both cases, the Rule states that the plaint shall state how capacity arises. In Mumo Matema vs Trusted Society of Human Rights Alliance & others (2014) eKLR, the court held that the issue of locus standi raises a point of law that touches on the jurisdiction of the court and should be resolved at the earliest opportunity. 18. In Wasike & another vs Eldoret Express Ltd & others, ELC originating Summons E001 of 2025 (2025) KEELC 5948 (KLR), the court found the suit incompetent for lack of letters of administration. ELC LC NO. E145 OF 2026 6

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19. Section 3 of the Law of Succession Act defines an administrator as a person to whom a grant of letters of administration has been made under the Act. Estate means the property of a deceased person. Free property means the property of which the deceased had the legal capacity to freely dispose during his lifetime. Personal representative means the executor or administrator of a deceased person. 20. The property of a deceased person is vested in a personal representative under section 79 of the Law of Succession Act. A grant of letters of administration under section 80 of the Act takes place as of the date of issuance. 21. It is the personal representative under sections 81, 82 & 83 of the Act who has the power and duties to enforce by law or otherwise, or defend all causes of action which by nature of any law, survive the deceased or arise out of his death. 22. In this suit, the Plaintiff is the one who sued the estate without ascertaining whether letters of administration have been issued to anyone. It is not the 3 rd ELC LC NO. E145 OF 2026 7

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Defendant who sued itself or brought itself to court. It is the Plaintiff who has dragged them to court. 23. The burden of proof does not therefore shift to the 3 rd Defendant, as submitted by counsel for the Plaintiff, as held in Raila Odinga & Others vs IEBC & Others (2017) eKLR. In Wanjohi vs Wanjohi ELC Appeal E012 of 2023 (2024) KEELC 5852 (KLR), the court cited Kihanga & Others vs Gichuri & Another (2024) KECA 852 (KLR) that under section 82 of the Law of Succession Act, only a legal representative has power to enforce by suit or otherwise all causes of action that survive the deceased. 24. The court cited Virginia Edith Wamboi Otieno vs Joash Ochieng Ougo & Another (1982-88) 1 KAR 1049 and Trouistik Union International & Another vs Jane Mbeyu & Another [1993] KECA 89 (KLR), Civil Appeal No. 145 of 1990, that a suit filed against a deceased person's estate or relating to his estate without a grant of representation amounts to nullity for want of locus standi. ELC LC NO. E145 OF 2026 8

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25. It is the law that a suit instituted by or against a person without legal capacity is a nullity ab initio and thus unsustainable. As held in Benjamin Leonard Macfoy vs United Africa Company Ltd ( West Africa) (1961) 3 All ER 1169, if an act is void, then in law it is a nullity and incurably bad, null and void such that one cannot put something on nothing and expect it to stay there since it will collapse. 26. The court has made a finding already that the 3 rd Defendant does not exist in the eyes of the law where such a party has not existed and is wrongly sued; the court had no option but to strike out the suit after upholding the preliminary objection. This was in Maurice Ooko Otieno vs Mater Misericordiae Hospital; failure to sue the right party goes to the jurisdiction of the court. 27. The Plaintiff, when the issue of capacity was raised, had an option to withdraw the suit against the 3 rd Defendant. 28. The Plaintiff sued a non-entity which has no right to appear in court, as held in Alfred Njau & others vs City Council of Nairobi (1982) KAR 228. The consequence ELC LC NO. E145 OF 2026 9

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is that there is no one, according to the Plaintiff, who has been appointed by a succession court to agitate the interest over LR No 97/0718/529, which the Plaintiff pleaded in paragraphs 5 & 6 of the plaint, and which they acquired jointly with the deceased. 29. A litigant pursuing a claim of this nature, as held in Peter KanKan Asituha & Others vs Otekia Mahinda Makunga & Another (2021) eKLR and in Otieno vs Ougo (1986-89) EALR 468, must take out titles and administration to acquire capacity to sue and be sued. 30. Any other shortcut as the Plaintiff has done renders the suit incompetent for the foregoing; the court upholds the preliminary objection as raised by the 3 rd Defendant. The fatality of the suit affects the entire suit and goes to the root of its sustainability. 31. facts The verifying affidavit by the Plaintiff contains sworn which are misleading and false that the 3 rd Defendant was capable of being sued when he knew or ought to have known better. 32. The suit is thereby struck out, with the court leaving only the 1st Defendant. ELC LC NO. E145 OF 2026 10

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33. DATED, File marked closed. SIGNED AND DELIVERED ON 30TH DAY OF SEPTEMBER,2026. …………………………………. HON JUSTICE C.K NZILI JUDGE In the presence of; Mr. Omondi for the plaintiff Mr. Otieno for the 2nd Defendant /Respondent Miss Jepkorir for the 3rd Defendant/Respondent Court assistant: Julius ELC LC NO. E145 OF 2026 11

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